Delay in filing a complaint and lack of criminal intent render allegations of cheating and fraud insufficient to constitute a cognizable offence under IPC.

JUDGMENT :

This petition has been preferred by the petitioner seeking the following reliefs:

“i) To issue an appropriate writ, order or direction in the nature of certiorari for quashing Mufassil (Gaya) PS Case No 1094/2023 dated 26.10.2023 registered under Sections 406, 420/34 of Indian Penal Code on the ground that the same is completely illegal and without any authority of law.

(ii) To issue further appropriate writ, order or direction in the nature of mandamus commanding the Respondents not to take any coercive step against the Petitioners in pursuance of Mufassil (Gaya) PS Case No 1094/2023.

(iii) This Hon’ble Court may adjudicate and hold that no cognizable offence is made out against the Petitioners as per the contents of First Information Report and therefore the Petitioners cannot be subjected to criminal prosecution.

(iv) To award the cost of litigation and suitable compensation to the petitioners for the loss and damages caused to them.

(v) To grant/award and other relief or reliefs which the Petitioners may be found entitled to in the facts and circumstances of the case.”

2. According to the pleadings, on the basis of written report dated 26.10.2023 made by the informant Harendra Kumar Singh, Mufassil (Gaya) PS Case No 1094 of 2023 has been registered under Sections 406, 420/34 of the IPC against the petitioners herein and other three accused persons. It is alleged by the informant in his written complaint that the present petitioners along with other accused persons called him and informed that Gere Stone Block is going to be auctioned and offered him that he has to participate in the said Gere auction on behalf of their company, namely, Octale Sales Private Limited, Champion Group of Company and Champion Omdev Construction Limited in lieu of share in the aforesaid companies. Allegedly, on the basis of said assurance, the complainant/informant returned back. However, the petitioners and other named persons did not proceed any further with the transaction. Suddenly, some day prior to the auction, they came to his house and requested him to give money for partnership. Upon repeated requests, on 05.01.2015, he deposited a sum of Rs 2.35 crores from his account as well as account of one Amresh Kumar Singh in the two accounts of petitioners’ company consequent to which they issued a power of attorney to participate in the auction. On the basis of said power of attorney, he participated in the auction and auction was finalized in the name of Octale Sales Private Limited. On the date of auction also, the informant deposited Rs 1,30,00,000/- by way of demand draft in the office of District Magistrate and the rest amount of Rs 37,50,000/- was also deposited in the account of Octale Sales to be deposited before the District Mining Office. Therefore, a total sum of Rs 4,02,50,000/- was given by the informant but neither did the accused persons refunded the money nor did they give share in the company upon which the informant came to believe that the accused persons have committed cheating and fraud. A legal notice was also sent by the informant in the month of April, 2023 which was never replied, then written complaint was filed by the informant. On the basis of above mentioned facts, FIR has been registered.

3. It is submitted by the learned counsel for the petitioners that the informant only deposited Rs 1.98 crores instead of Rs 2.35 crores which is duly reflected in the books of accounts of Champion Group of Companies for the year, 2015 and the ledger account of the informant Harendra Singh. He further submits that the informant Harendra Singh had obtained minerals from the stone mines from the share of the Champion Group of Companies and, thus, the said amount was duly repaid. Further referring to the books of accounts of Champion Group of Companies for the year 2018 – 2019 (Annexure P/3), it is submitted by the counsel that according to the entries made in the books of accounts in the name of informant Harendra Singh, only Rs